| Bacani v Rosenberg |
| 2010 NY Slip Op 04919 [74 AD3d 500] |
| June 10, 2010 |
| Appellate Division, First Department |
| Maria Teresa Bacani, Individually and as Administrator of theEstate of Jonathan Bacani, Deceased, et al., Respondents, v Lisa Rosenberg, M.D., etal., Defendants, and Deepak Nanda, M.D., Appellant. |
—[*1]
Order, Supreme Court, New York County (Joan B. Carey, J.), entered on or about June 1,2009, which, to the extent appealed from, denied the cross motion by defendant Nanda forsummary judgment dismissing the medical malpractice complaint as against him, unanimouslyreversed, on the law, without costs, the cross motion granted, the complaint dismissed as againstDr. Nanda, and the action severed and continued as to the remaining defendants.
Plaintiff mother delivered a stillborn fetus 10 days after fetal demise was diagnosed onSeptember 17, 2004. At that time the fetus was in the 35th week of gestation. The autopsy reportcontains the following notation: "There were multifocal chronic and acute infarcts in the placenta(in addition to the expected post-IUFD changes), the presence of which suggests thatuteroplacental insufficiency may have played a role in this fetal demise. However, the extendedin utero retention time prevents a more conclusive statement as to the cause of death."
On or about February 26, 2004, plaintiff mother began her prenatal treatment with defendantRosenberg, her obstetrician/gynecologist. Dr. Rosenberg referred the patient to Dr. Nanda, aperinatologist, who examined her on August 31, 2004. No anomalies were disclosed by a fetalanatomy sonogram performed by Dr. Nanda that day, although he did note a large fibroid in thelower uterine segment. Dr. Nanda advised Dr. Rosenberg in writing that a large fibroid may beassociated with a slow, difficult or dysfunctional labor or postpartum hemorrhage. He instructedplaintiff mother to return for a follow-up examination in two weeks. In the interim, on September6, 2004, six days after Dr. Nanda's examination, plaintiff mother returned to Dr. Rosenberg foran office visit. At the time of this visit, Dr. Rosenberg observed that the baby was growing welland the amniotic fluid volume was normal. According to plaintiff mother's deposition, sheexperienced no cramping, bleeding, pelvic pain or discharge at the time of her [*2]August office visit with Dr. Rosenberg or a follow-up visit with Dr.Nanda on September 17, 2004. Dr. Nanda performed another sonogram during this follow-upvisit, and detecting no heartbeat, he suspected fetal demise. On his advice, plaintiffs immediatelywent to a hospital where the death of the fetus was confirmed.
In plaintiffs' supplemental bill of particulars, it is alleged that Dr. Nanda deviated from astandard of medical care that required him to (1) inform plaintiffs that the fibroid was growingand large enough to injure the fetus, (2) provide sufficient antepartum fetal monitoringnecessitated by plaintiff mother's advanced maternal age of 39, (3) provide the same monitoringnecessitated by the fibroid, (4) supervise and monitor the treatment of plaintiff mother and herfetus, and (5) deliver plaintiff's child before fetal death occurred.
To make out a prima facie case of medical malpractice, a plaintiff must show that adefendant deviated from accepted medical practice and that the alleged deviation proximatelycaused injury or death (see Koeppel v Park, 228 AD2d 288, 289 [1996]). A medicalmalpractice defendant moving for summary judgment meets his initial burden by establishingthat he did not deviate from accepted medical practice or proximately cause injury (Mattis v Keen, Zhao, 54 AD3d610, 611 [2008]). Dr. Nanda submitted the expert affidavit of Dr. Sandra McCalla, aphysician board certified in obstetrics and gynecology. Dr. McCalla opined that uterine fibroids,in and of themselves, do not cause fetal demise. She also opined that in light of plaintiff mother'shistory, clinical evaluation, prior sonogram results and August 31, 2004 sonogram, Dr. Nanda'srequest for a follow-up evaluation in two weeks after his August 31 examination wasappropriate. Dr. McCalla further opined that based on the absence of prior known medicalcomplications, nothing in plaintiff mother's prenatal history or the August 31 sonogramwarranted any fetal testing or monitoring beyond what was done. As a basis for her opinions, Dr.McCalla cited the absence of reported vaginal bleeding, abdominal pain or discharge as notedabove. She also made note of the fact that the sonogram revealed a normal pregnancy withfibroids, a vertex presentation with normal fetal heart rhythm, a normal heart chamber and anormal amniotic fluid volume. Based upon the foregoing, Dr. McCalla's affidavit established thatDr. Nanda did not deviate from accepted medical practice. Accordingly, the burden shifted toplaintiff to produce evidence in admissible form sufficient to establish the existence of a triableissue of fact (see Sisko v New York Hosp., 231 AD2d 420, 422 [1996], lv dismissed89 NY2d 982 [1997]). Once a medical malpractice defendant has established the absence ofany departure from good and accepted medical practice causing injury, a plaintiff in opposition"must submit a physician's affidavit of merit attesting to a departure from accepted practice andcontaining the attesting doctor's opinion that the defendant's omissions or departures were acompetent producing cause of the injury" (Domaradzki v Glen Cove Ob/Gyn Assoc.,242 AD2d 282 [1997]). Plaintiffs' expert, Dr. John T. Harrigan, who is also board certified inobstetrics and gynecology, opined that Dr. Nanda deviated from the applicable standard ofobstetrical and gynecological practice by failing to assess the risk of fetal death and failing toperform and recommend weekly fetal surveillance and/or testing of the fetus commencing onAugust 31, 2004, the date of his initial consultation. Supreme Court denied Dr. Nanda's crossmotion, finding issues of fact and credibility as to whether Dr. Nanda had deviated from theapplicable standard of medical care as opined by Dr. Harrigan. We disagree.
Dr. Harrigan stated in his affidavit that a review of unspecified "records indicates that [thefetus] died from uteroplacental insufficiency caused by both advanced maternal age and a [*3]uterine myoma." This claim of causation is at odds with the autopsyreport, which stated that uteroplacental insufficiency "may have" played a role in the fetaldemise. Moreover, the autopsy report did not attribute uteroplacental insufficiency to the factorsrecited in Dr. Harrigan's affidavit. Hence, Dr. Harrigan's opinion does not raise a triable issue offact with respect to causation because it is not based on facts contained in the record or withinhis personal knowledge (see Quinn v Artcraft Constr., 203 AD2d 444, 445 [1994]). Also,according to Dr. Harrigan, good medical practice would have required Dr. Nanda to scheduleplaintiff mother for fetal surveillance and testing on September 7 and 14, 2004. Here, his opinionwas conclusory because he did not state what the surveillance and testing might have disclosedon those dates. In addition, Dr. Harrigan's affidavit failed to address the absence of signs of fetaldistress, as indicated in plaintiff mother's deposition and Dr. Rosenberg's September 6, 2004office examination. An expert's affidavit containing bare conclusory assertions is insufficient todefeat summary judgment (Wright v New York City Hous. Auth., 208 AD2d 327, 331[1995]). Accordingly, plaintiffs have not raised a triable issue of fact as to whether Dr. Nandadeparted from accepted medical practice, and even if so, whether such departure was acompetent producing cause of the fetus's death. Concur—Gonzalez, P.J., Moskowitz,DeGrasse, Manzanet-Daniels and RomÁn, JJ. [Prior Case History: 2009 NY Slip Op31190(U).]